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Procedural Due Process and Irrebuttable Presumptions

Example 5-C

The Ohio State Penitentiary (OSP) is a maximum security prison with highly restrictive conditions. It was designed to segregate the most dangerous prisoners from the general prison population. For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not possible from cell to cell; the inmate’s cell light may be dimmed, but it remains on for 24 hours; and the inmate may exercise only one hour per day in a small indoor room. Basically, the OSP inmates are deprived of almost all environmental or sensory stimuli and of almost all human contact. Moreover, placement at OSP is for an indefinite period of time, limited only by an inmate’s sentence. The inmate’s placement in OSP is reviewed once a year. In addition, during placement in OSP, an otherwise eligible inmate is ineligible for parole consideration. Would an inmate incarcerated within the Ohio prison system have a liberty interest in not being transferred to OSP?


Whether such an inmate would have a protected liberty interest—i.e., one that entitles him to due process—depends on whether an OSP placement “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. at 484. In Sandin, the Court concluded that this standard was not satisfied with respect to a 30-day transfer to solitary confinement. The OSP assignment, although similar to the typical solitary confinement in terms of the isolation imposed on the inmate, is for a significantly longer duration, and perhaps for an entire life sentence. In addition, those placed in OSP lose their eligibility for parole for that same indefinite period of time. Sandin would, therefore, appear to be distinguishable, and the Supreme Court so held under similar facts in Wilkinson v. Austin, 545 U.S. 209 (2005). In the Court’s view, the combination of the harsh isolation, the indefinite length of the placement, and the loss of parole eligibility imposed atypical and significant hardships in relation to the ordinary incidents of prison life. The inmates, therefore, had a protected liberty interest against being placed in OSP.

§5.2.2 What Constitutes Property?

Property interests are not created by the Constitution, but stem from other sources, such as state or sometimes federal law. Property within the meaning of the Due Process Clause embraces all the traditional forms of real and personal property. Thus, procedural due process protections apply if the government seeks to enforce a lien against real property, garnish a person’s wages, or attach a bank account, because all of these are types of property long recognized under state law.

For procedural due process purposes, the term property also embraces many public benefits and statutory entitlements that were once regarded as mere privileges or gratuities not deserving of constitutional protection. Welfare benefits, unemployment compensation, tax exemptions, Social Security pensions, public employment, licenses to engage in a trade or profession, and a myriad of other governmental benefits today may all qualify as property for procedural due process purposes. The Court has rejected the “rights/privileges distinction” under which government was once free to ignore the Constitution in dealing with mere privileges or public benefits.

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